Personal Injury Law

The Food Labeling Provisions of the Health Care Bill: Preliminary Thoughts

By Richard Goldfarb

You've heard the phrase "buried in the bill," of course.  Section 4205 of the "Patient Protection and Affordable Care Act," the health care reform bill President Obama signed on March 23, 2010, is contained on pages 1206-1214 of a 2407 page bill.  It could hardly be more buried than that.

In very technical terms, Section 4205 inserts a new subclause (H) into Section 403(q)(5) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 343(q)(5), and adds a proviso (referring to the new subclause (H)) in Section 403(q)(5)(A).  Section 403 is entitled "Misbranded Food" and clause (q) is entitled "Nutrition Information."  Previously, subclause (5)(A) has exempted both restaurant food or takeout food from federal nutritional labeling requirements. 

The new statute creates a new regime for labeling, in essence only requiring caloric and other information to be provided by restaurants covered by the act, by vending machines owned by persons covered by the act, and by those who opt in to the act. 

The covered restaurants are those "part of a chain of 20 or more locations doing business under the same name (regardless of the type of ownership of the locations).and offering for sale substantially the same items."  This appears to be intended to cover chain restaurants even if they are franchised, or held in separate subsidiaries. 

The substance required to be disclosed is actually quite discrete.  It must be:

• In a clear and conspicuous manner
• Adjacent to the name of the standard menu item
• Clearly associated with the standard menu item
• Of the number of calories contained in the standard menu item as usually prepared and offered for sale

In addition, there must be posted prominently on the menu "designed to enable the public to understand, in the context of a total daily diet, the significance of the caloric information provided on the menu."  This would include information about a recommended daily calorie intake. 

Finally, all of the standard information required under clause (q)(1)(C) and (D), meaning the standard information on calories derived from fat, plus total fat, saturated fat, cholesterol, sodium, total carbohydrates, complex carbohydrates, sugars, dietary fiber and total protein,  must be provided somewhere in the restaurant and a prominent, clear and conspicuous sign stating this fact must be on the menu or menu board. 

The caloric disclosure also applies to a salad bar, buffet line, cafeteria line, or similar self-service line, "adjacent to each food offered," on the basis of per displayed food item or per serving. 

Food establishments are required to have a reasonable basis for their nutrient content disclosures.

There will be regulations on how to deal with different flavors or combinations (such as soft drinks from a fountain with many choices or pizza with different toppings).  Regulations can also add to the list of nutrients required to be disclosed. 

Exceptions to the disclosure requirements include items not listed on the menu, such as condiments, daily specials not on the menu for less than 60 days per calendar year, and food that is part of a customary marketing test but for a period of less than 90 days. 

Food from vending machines where the machine does not allow the nutrition facts panel to be seen prior to purchase is required to have "in close proximity to each article of food or the selection button" a clear and conspicuous statement of calories in the article.  Vending machines are covered if they are operated by a person who is in the busienss of owning or operating 20 or more vending machines.

The Secretary of Health and Human Services has one year to propose regulations. 

An important aspect of the  law is its preemption of inconsistent state laws.  This applies to the establishments required to be included, and any others that choose to opt into the program.  Thus, a smaller chain that crosses state lines where the two states have differing disclosure rules can choose to follow the federal rule and thus be able to print and display consistent menus,as well as train their personnel on only one set of rules.  The preemption does not apply to labeling requirements in the nature of warnings concerning the safety of food, presumably including the California warnings about alcohol during pregnancy. 

Until the rules come out, of course, the devil will remain in the details.

Full post as published by Food Liability Law Blog on March 25, 2010 (boomark / email).